Watergate, page 64
“Other tapes contained audible blips that lasted a few seconds and that as a result obliterated key words,” Doyle recalled. “Listening to them was like watching the Johnny Carson show during its raunchier moments. One understood what the speaker was saying, but the blips kept the incriminating words from being heard.”I
On January 16, the morning after the expert panel brought their report forward, Leon Jaworski appeared before the grand jury and explained that they were about to be given a “new line” of evidence “more sensitive than any they had heard before.” Until then, the prosecutors had not mentioned the existence of the tapes at all, and as Ben-Veniste and Frampton recalled, “We were eager to see their reactions: Whether twenty ordinary people well versed in the facts of the case but lacking a lawyer’s perspective would find the tapes as startling and as damaging to the president as we found them.”
To make sure the process remained as controlled as possible, Frampton and Carl Feldbaum spent hours wiring the jury room with twenty-three sets of earphones. As the jurors listened, they passed among themselves a large bag of potato chips. At first, the prosecutors wondered if anyone would hear the tapes over the crunching chips, but as the minutes passed, they got their answer. The facial expressions changed. The jurors were listening—and they were horrified.
* * *
On January 30, Richard Nixon arrived at the Capitol to deliver his State of the Union address, a night that he noted marked the twenty-seventh anniversary of the night he and another freshman congressman named John F. Kennedy had listened to their first address from Harry Truman.
For a year, the implicit question in the Watergate scandal had been whether the good of Richard Nixon outweighed—or was at least worth—the bad, a delicate issue of balance that was evident to anyone listening to that evening’s speech. Outside of Watergate and its associated investigation, the president had managed to draw Vietnam to a close, reopen China, bring détente with the Soviet Union, and remake America’s monetary policy—surely all accomplishments that counted against a shambolic, third-rate burglary carried out by some overeager aides? And yet was it really “just” a question of CREEP, some loose money, and—perhaps at its worst—a few well-meaning aides like Ehrlichman and Haldeman?
The current state of geopolitics and the economy didn’t help bolster the situation. The Arab embargo had led to the price of oil quadrupling from $2.90 a barrel to $11.65 a barrel between October and January, and countries across the West were feeling the pinch. In Paris, the French began to turn off the lights of the Eiffel Tower overnight. Nixon had called for the heating in federal buildings to be turned down to between sixty-five and sixty-eight degrees and asked for a lower, more efficient fifty-mile-per-hour national speed limit. In the U.S., long lines at gas stations became a regular sight; rationing became common; that winter, half of the respondents to a government economic survey reported being unable to buy all the gasoline they needed. Inflation grew at an uncomfortable speed. The government calculated that prices were rising at a 14 percent annual clip, a psychologically devastating rate for families and workers. Industry was hard hit; food prices soared. As households felt pain, Nixon’s consumer affairs advisor Virginia Knauer advised people to eat more “liver, kidney, brains, and heart,” to minimize the doubling of meat prices.
Now, as Nixon spoke to both legislative houses and the American public, he forcefully and eloquently laid out an ambitious ten-point agenda for the country—signaling both his commitment to confronting hard challenges ahead and, more subtly, the reason why his presidency continued to be good for the nation. He noted his administration’s “overriding aim to establish a new structure of peace in the world that can free future generations of the scourge of war,” and the need to “break the back of the energy crisis,” specifically mentioning efforts to boost transportation spending and increase cash assistance to struggling Americans.
In the last moments of the speech, he finally turned to Watergate, pleading with the nation that the country’s progress required the cessation of the ongoing inquiries. “I believe the time has come to bring that investigation and the other investigations of this matter to an end. One year of Watergate is enough,” he said. “I have no intention whatever of ever walking away from the job that the people elected me to do for the people of the United States.”
The president’s words, defense, and promises met a mixed reaction in the Capitol. “One minute of Watergate was too much,” Ervin responded, explaining to reporters that it was the president’s ongoing obfuscations and stalling that were dragging out the investigation. Others, like Tip O’Neill, sat in frustration. That week, in the wake of the erasure revelations, he had said he’d sponsor legislation offering immunity from prosecution if Nixon resigned, but to no avail. As fiercely partisan as he was, O’Neill knew his role as majority leader was to lead his caucus to get the maximum support from the American people. Reading the political landscape remained challenging; as low as Nixon’s approval ratings were—just 27 percent in Gallup’s poll—the country was equally split, 46–46, on whether he should resign.
Two days after the address, Jaworski and Haig met again. Whatever warmth or spirit of cooperation had existed between them in the special prosecutor’s first two months had evaporated thanks to James St. Clair’s new strategy of fighting every step of the way. The White House now protested or delayed even routine exchanges, complaining about FBI interviews of staffers and once even forcing Jaworski to be escorted by security on White House grounds. Haig explained that the White House strategically couldn’t cooperate with the special prosecutor without giving oxygen to the burgeoning House impeachment inquiry too, but Jaworski said he was sick of the new blockages. “Every time you get a little bit ahead of the game, you make some decision that plunges you behind again,” Jaworski cautioned. “I’m going to have to go to the Hill and tell them about this, and then I’m going to litigate the piss out of you.”
It was a serious but necessary threat. The pressure on Jaworski throughout the winter had been crushing; isolated and alone, he felt at odds with the White House, his own staff, and even the Watergate grand jurors. The deeper he got into the case, the worse his view of this specific president and politics became, particularly after hearing a non–Watergate related tape containing a “disgusting display of uncontrolled backbiting by the President and Colson regarding other White House aides of the highest rank.” The whole experience had disillusioned him to Washington. He was living in a suite at the Jefferson Hotel on 16th Street NW, and the stakes of his work seemed omnipresent—nearly the first thing he saw in the morning walking to work and the last thing he saw in the evening returning from it was the White House down the street.
His Spartan office telegraphed a sense of temporariness and dislocation. He hadn’t hung anything on the walls since taking over from Cox, and rumors circulated regularly through the capital that he would be removed imminently by the president—an unlikely event, due to the need for concurrence of congressional leaders, but hardly a helpful mental backdrop for decision-making. At one point, St. Clair met with him and assured the special prosecutor, “I want you to know that you are in no danger of being fired.”
“That would be the biggest favor you could do me,” Jaworski replied.
On February 12, the special prosecutor attended a small, off-the-record dinner at the TIME Washington bureau, with the magazine’s leaders and top reporters, part of the get-to-know-you gatherings that James Doyle often organized for major news outlets. As the dinner unfolded, Jaworski asked, abstractly, “Suppose I heard a tape that makes it very clear that the President is guilty of criminal conduct? Suppose the President knows I’ve seen this incriminating material. What would the President do?”
“Resign!” Ed Magnuson, who had been feverishly writing the magazine’s cover stories about the scandal for the past year, said. Everybody at the table laughed.
Except Jaworski.
It was the first clue the magazine’s staff had of the trouble ahead. “I believe it was always his intention to get Nixon to resign rather than go through the impeachment procedure,” correspondent John Stacks later reflected. “I felt he was trying to send a message to the press and squeeze Nixon out of office.”
* * *
As winter and investigations pressed on, figuring out where to draw the line between “inescapable inferences” and grounds for criminal charges or impeachment consumed the president’s defense team, Jaworski’s prosecutors, and the House Judiciary Committee staff. “The information in 1973 had moved faster than the processes, the information flow had been so immense that the expectancy it created for immediate action was tremendous,” observed David Halberstam. “Now the legal and political processes were working, but they were working more slowly, in older rhythms.” Throughout the process, each group found themselves drawing narrow distinctions and stymied by their own constraints.
In January and February, Jaworski had had the evidence and the capability to compel cooperation from the president, but not the mission to take him on. During the same period, Doar had the mission, but not the evidence or the capability. Even figuring how to define their own framework had been difficult; the Judiciary Committee had sharp debates over whether Nixon’s lawyers would be allowed to participate, with Doar arguing that the House inquiry was similar to a grand jury, which excluded defense lawyers, even as committee Democrats felt that the unique circumstances of a presidential impeachment process meant they needed to make room for James St. Clair.
Two days after the TIME dinner, St. Clair and Doar met to debate the standards for an impeachment. The White House lawyer argued that the committee should narrowly interpret its mission as charging only identifiable felonies, while Doar and Jenner both argued that the president could face impeachment for serious misconduct or abuses of power that were not strictly criminal in nature. As Congress saw it, “Impeachment is a Constitutional remedy addressed to serious offenses against a system of government.” The House Judiciary Committee believed that violations of the presidential duties under the Constitution, which required the officeholder to “preserve, protect, and defend the Constitution” and “take care that the laws be faithfully executed,” could spark an impeachment. As a whole, Doar was focused on proving a pattern of behavior—he felt that removing a president should be focused on multiple incidents, not just a single crime, almost regardless of severity. “There had to be something of a persistent problem that went over time, that didn’t show an error that was transitory, but something that went on,” impeachment staffer Evan Davis recalled.
To find that pattern, if it existed, Rodino, Doar, and the House Judiciary Committee assembled a formidable team. In response to one memo on hiring, Doar scrawled across the top what mattered to him: “Are they careful? Do they pay meticulous attention to detail? Do they take nothing for granted? Do they organize their work? And are they neat? Are they stubborn?”
He underlined “stubborn.”
In addition to the squads of typists, fourteen investigators, fourteen clerks, and other consultants and specialists, the committee recruited forty-three lawyers, some of whom would become the brightest of their generation, including one future secretary of state (Hillary Rodham), one future governor (William Weld), and one future CEO of the Boston Red Sox (Larry Lucchino).II Maureen Barden was just twenty-five, having finished a stint working on the Attica Commission investigating the riot and state police massacre that had unfolded in the prison there in ’71. Rodham, just out of law school, had joined the team after Doar tried to hire her boyfriend; when Bill Clinton told Doar he was unavailable because he planned to return to Arkansas to run for governor, he suggested, “How about hiring my girlfriend?”
Doar also recruited David Robert “Bob” Owen, a former Justice Department colleague who at age thirty-one had prosecuted the first voting-rights case ever brought to trial by the U.S. government and had risked his life leading the indictments for the murder of three civil rights workers in Mississippi in 1964.
Altogether, the team was a “whirlpool of sparkling legal talent” that far “outmatched” Rodino himself, columnist Holmes Alexander noted. It was left unnoted that nearly all the members of the team were white men; just four were Black, and Rodham became a point of media fascination as one of just four women on the team. “How does it feel to be the Jill Wine Volner of the impeachment committee?” ABC’s Sam Donaldson asked her at one point. They were collectively sworn to secrecy, liable to be fired immediately if they spoke to the press.
Doar also made clear he wanted tight lines around the investigation, and he purposefully didn’t want to retread old ground, believing that if the House committee was seen to be repeating hearings or investigations already covered by others, it would poison the public perception of their work. He focused the inquiry staff on six distinct areas, careful to emphasize that just because the inquiry was investigating something didn’t mean a crime had occurred: (1) “Domestic surveillance activities conducted by or at the direction of the White House”; (2) “allegations concerning intelligence activities conducted by or at the direction of the White House for the purposes of the presidential election of 1972,” aka the campaign dirty tricks; (3) the Watergate burglary itself and the resulting cover-up; (4) the president’s personal finances and expenses; (5) misuse of government agencies for political purposes and illegal campaign contributions; (6) a general catch-all category that included all other allegations, including the secret bombing of Cambodia. A seventh inquiry task force was in charge of sorting through the complex constitutional and legal questions stemming from prosecuting a case in Congress against the head of a co-equal branch of government.
Bob Owen found the first chink in the president’s defenses relatively quickly; sitting at a table in the main library room, he had been arranging and rearranging the index cards pertaining to the day of the burglary itself and the day after, June 17 and 18, when something stuck out to him: “McCord,” he said, wondering out loud. “McCord is fired from his job at the reelection committee—fine. But now where is Liddy on the 18th?” Confused, he brought the question to Maureen Barden.
“He is still listed as working for the committee,” she replied.
“When did he leave the committee?”
“Not until the 28th,” Barden explained. “He refused to talk to the FBI and they fired him.”
“Not till the 28th? And only when they had to get rid of him?”
The two investigators reexamined the timeline; McCord had been fired right away, but the committee had kept on Liddy for more than a week, despite the knowledge that the whole operation had been his to begin with. No one fired Liddy until they had to. Owen, in a flash, realized Doar’s thesis was right: Nixon had been in on it from the beginning.
I. After the huge study of the June 20 tape, Sirica decided that the court couldn’t endlessly fund additional studies of additional gaps and deletions, and thus the deliberateness of the subsequent gaps was never examined.
II. There were at least five marriages that grew out of the inquiry staff, mostly pairings between the male attorneys and the female research staff.
Chapter 48 Le Grand Fromage
The Special Prosecutor’s Office was a hive of activity at all hours as the prosecutors, secretaries, lawyers, and FBI special agents assembled cases—all amid a stream of witnesses, cooperating defendants, and defense attorneys. One Saturday morning, at work as usual, James Doyle found a note on the office vending machine: “This machine owes me 20¢—John Dean.”
During a brief and ultimately unsuccessful attempt to confront John Ehrlichman with the evidence investigators had marshaled about his role in the cover-up, Leon Jaworski and Henry Ruth met with the former aide and his lawyers in hopes of spurring a plea negotiation. Ehrlichman listened impassively, fiddling with a pencil as Jaworski recited thirteen distinct charges that they believed they could make stick. The thirteenth charge involved Ehrlichman appearing to have cut up a specific memo to remove incriminating information, likely using scissors. Jaworski began “The last possible charge is mutilation of a government document—” only to be interrupted by Ehrlichman twisting up his face and throwing the pencil to the floor.
“That I did not do,” he said, forcefully.
Ehrlichman’s lawyers sat in stunned silence.
There would be no plea, it became clear, and instead the prosecutors would have to move forward with an indictment. In many ways, the cases against Ehrlichman and the other White House personnel were the easy ones—the real thorny challenge was the the potential defendant Ben-Veniste nicknamed “Le Grand Fromage,” Nixon himself. The nickname, “GF” for short, was delivered first in jest, but soon became the unofficial but universal code name to avoid even speaking the potential defendant’s name aloud. Unbeknownst to nearly everyone, Leon Jaworski’s staff was working on two parallel tracks to study the unique challenges and culpability of the president—both efforts hidden to others in the office and even, in some cases, from each other.
As a first step, lawyer Richard Weinberg was tasked with researching the basic question: Can you indict a sitting president? The short answer, after wading through a lot of obscure legal questions, constitutional precedents, judicial opinions, and American history, appeared to be: “Yes, but you shouldn’t.” There was no specific prohibition in the Constitution or elsewhere, but there were real questions about the institutional “propriety” of the Justice Department bringing charges against the head of the executive branch.I Weinberg composed a memo with Phil Lacovara that focused on two different approaches they could take—relying either on the “alternative mechanisms” designed to hold the president accountable in office, e.g., impeachment, or on resolving the case with a “disposition or settlement in the public interest,” e.g., how prosecutors had negotiated a plea deal with Agnew in exchange for his resignation. Their conclusion was that their highest service had to be to what was best for the nation, not just what was best for justice.
